Ridd Case: High Court's two cheers for academic freedom

Associate Professor Andrew Bonnell University of Queensland

Academic freedom is an indispensable precondition of universities’ most essential function: the discovery of knowledge and its transmission. Anyone engaged in research and teaching in higher education must have freedom to pursue knowledge and to pass it on to students in ways that are not subject to interference by university managements or other bodies or persons who may represent interests other than the furtherance of knowledge.

Higher education staff also have the right to participate in the governance of their institutions, which also entails the exercise of academic and intellectual freedom.

These tenets have long been recognised in international declarations and agreements, and academic freedom enjoys effective legal protection in many jurisdictions. In Australia, the most effective protection of academic freedom has resided in our Enterprise Agreements between the NTEU and individual university managements. In the last couple of years, this protection has come under threat from managements seeking to use codes of conduct and other provisions of Agreements to curtail the protection of academic freedom.

Two recent court decisions, one involving Tim Anderson and the University of Sydney (see report, p.22), and James Cook University’s (JCU) appeal to the Federal Court of Australia in its case against Peter Ridd, apparently put the status of our academic freedom clauses in jeopardy. Even though Ridd ultimately lost his appeal to the High Court, the High Court has at least confirmed that there is such a thing as academic freedom, and that it is entitled to protection under Enterprise Agreements. There remain some concerns about the potential interaction between the defence of academic freedom and the operation of confidentiality clauses in university processes, however.

Peter Ridd’s employment at JCU had been terminated after 27 years in May 2018 for 'serious misconduct', with the University management citing the manner in which he had criticised the work of some of his colleagues on climate science and the state of the Great Barrier Reef. Ridd took the matter to the Federal Circuit Court in 2019 and won, being awarded $1.2 million in damages for lost income and penalties. JCU management appealed to the Full Bench of the Federal Court. (Vice-Chancellors do not have to fund such actions out of their own pockets. Universities’ willingness to spend significant sums on litigation must be a constant source of joy to the expensive end of the legal profession).

The majority judgement of the Full Bench of the Federal Court was handed down in July 2020. Justices Griffiths and Derrington found in favour of JCU, overturning Ridd’s earlier win. Some of the statements in the majority judgement might potentially have been of concern to university staff with an interest in the protection of academic freedom. The majority judgement found that Ridd’s exercise of his academic freedom was subject to the requirements of the University’s Code of Conduct to behave in a collegial and respectful way, and that Ridd had not complied with the Code of Conduct and relevant directives of the JCU management. The majority also found that Ridd had failed to 'behave in a way that upholds the integrity and good reputation of the University', suggesting that institutional reputational concerns were also relevant as potential limits on academic freedom. (Among other things, JCU held that Ridd had breached a 'No Satire Direction' in the way in which he had represented the University management’s case against him in media commentary. An outside observer might well reflect that a 'no satire direction' from a university’s management is itself beyond satire.)

Apart from the specifics of Ridd’s case, the Griffiths and Derrington judgement contained some worrying broader reflections on academic freedom. The judgement held that the concept of academic freedom lacked a clear contemporary definition: 'there is no common understanding across the university sector as to the content of any principle of academic freedom or of intellectual freedom, nor any unanimity as to where the bounds of any such freedoms should be set'. The JCU Enterprise Agreement clause on Intellectual Freedom did not include the term 'academic freedom', although 'academic freedom' and 'freedom of expression' were both cited (distinctly) in the JCU Code of Conduct.

The judgement stated:

There is little to be gained in resorting to historical concepts and definitions of academic freedom. Whatever the concept once meant, it has evolved to take into account contemporary circumstances which present a challenge to it, including the internet, social media and trolling, none of which informed the view of persons such as J S Mill, John Locke, Isaiah Berlin and others who have written on the topic.

One might infer from the judgement that the term 'academic freedom' is not clearly defined or understood; that it is appropriate for university managements to give precedence to their interpretation of behaviours under their Code of Conduct, and to an institution’s reputation; and that 'academic freedom' may be obsolete anyway in the era of the internet and social media. The judgement, followed by another court decision a few months later dismissing Tim Anderson’s defence of intellectual freedom in his case against University of Sydney, seemed to indicate that the maintenance of academic freedom protections through Enterprise Agreements was under serious threat.

On 13 October 2021, the High Court delivered a unanimous judgement by Chief Justice Susan Kiefel and four other judges in the Ridd case. The High Court judgement vindicated the priority given to intellectual freedom by the relevant clause in the JCU Enterprise Agreement, and reaffirmed the centrality of academic and intellectual freedom to the main purposes of higher education. Quoting John Stuart Mill, the High Court stated:

The best interpretation of cl 14, having regard to its text, context, and purpose, is that the intellectual freedom is not qualified by a requirement to afford respect and courtesy in the manner of its exercise. That interpretation aligns with the long-standing core meaning of intellectual freedom. Whilst a prohibition upon disrespectful and discourteous conduct in intellectual expression might be a 'convenient plan for having peace in the intellectual world', the 'price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind'

We can be thankful that the High Court did not entertain the suggestion that the advent of social media and the internet had superseded such views on academic and intellectual freedom.

Despite the High Court upholding a right to intellectual freedom (which it found was more specific than a more general 'freedom of speech'), Ridd still lost his case, on the basis that his submission had argued that all of his conduct had been protected by the intellectual freedom clause, and the High Court found that this protection did not extend to breaches of confidentiality with which Ridd had been charged. Given that Ridd’s lawyers had argued his case as an 'all-or-nothing' proposition, the High Court upheld his dismissal by JCU and dismissed his appeal.

The Ridd case, and the findings in the appeal in the Anderson matter, have revived the concept of academic or intellectual freedom as far as our courts are concerned. This is good news – the NTEU’s capacity to defend its members whose expressions of opinion on areas that pertain to their scholarly work or to university governance from punitive action by management has been preserved after two previous judgements that threatened to fatally undermine this protection. University managements could well seek to curtail the expression of academic and intellectual freedom for a number of reasons, including commercial considerations (as has been expressly sought by some managements), or concern for public relations and an institution’s image. These decisions make it harder for managements to do so.

There remains the problem that managements may make use of confidentiality clauses to muffle dissent. Such clauses might have had the original function of protecting staff accused of misconduct from unjustified reputational damage, as well as the privacy of third-party complainants or witnesses, but they should not serve simply to save managements from embarrassment in the event that they raise inappropriate charges against a staff member. There is some work to be done in the current bargaining round to strengthen the clauses around academic and intellectual freedom, to ensure that the terms are clearly defined and understood, to constrain managements from imposing limits on these beyond the well-established exclusions that such freedom does not mean freedom to vilify, intimidate, or harass, and to constrain the operation of confidentiality clauses to their rightful procedural sphere. ◆

Andrew Bonnell is an Associate Professor in History, UQ and NTEU National Vice-President (Academic)